Opinion
Appellate case number: 01-15-01081-CV
07-19-2016
Jacque Passino and Lone Pine Properties Ltd., et al. v. David C. Ruch, et al.
ORDER Trial court case number: 11-CV-0697 Trial court: 10th District Court of Galveston County
On February 18, 2016, this Court's Memorandum Order, among other things, granted the joint amended motion to dismiss the appeals and cross-appeals of the September 22, 2015 final judgment for want of jurisdiction. That Memorandum Order further noted that the appeal by the Ruch Cross-Appellants against the Allen Appellees, identified as Ted. W. Allen & Associates, Inc., William Etheredge, III, individually and d/b/a Etheredge Real Estate & Property Management and d/b/a Etheredge Real Estate, regarding the January 8, 2016 new final judgment, remained pending.
On June 21, 2016, most of the parties filed this "Joint Motion of Plaintiffs and Settling Defendants to Partially Vacate and Remand Because of Settlement." The joint motion claims that Plaintiffs and the Settling Defendants have entered into a settlement agreement and seek to carry out that agreement by moving to set aside the trial court's judgment without regard to the merits and remand for rendition of judgment. See TEX. R. APP. P. 42.1(a)(2)(B). The parties further claim that because the Allen Appellees have not settled with Plaintiffs and their appeal remains pending, this Court may dispose of the severable portion of the appeal involving the Settling Defendants without prejudice to the Allen Appellees. See id. 42.1(b). The joint motion further requests that this Court issue its mandate simultaneously with the Court's judgment on those parts of the case, and assess costs to each party that incurred them. See id. 18.1(c), 42.1(d).
Texas Rule of Appellate Procedure 42.1(b), regarding partial disposition, states that "[a] severable portion of the proceeding may be disposed of under (a) if it will not prejudice the remaining parties." TEX. R. APP. P. 42.1(b). Texas Rule of Appellate Procedure 18.1(c) states that "[t]he mandate may be issued earlier if the parties so agree, or for good cause on the motion of a party." TEX. R. APP. P. 18.1(c). However, without a motion to sever, issuing this Court's mandate simultaneously with the judgment would require expediting the mandate to the prejudice of the remaining Allen Appellees because this Court may issue only one judgment and mandate in each appellate cause number. Compare TEX. R. APP. P. 43.2(d) (stating that this Court may "reverse the trial court's judgment and remand the case for further proceedings") with 51.1(b) (stating "[w]hen the trial court clerk receives the mandate, the appellate court's judgment must be enforced.").
Accordingly, we sua sponte construe this joint motion to partially vacate and remand as a motion to expedite the mandate and deny it without prejudice to refiling a motion to sever the Plaintiffs and the Settling Defendants into a separate appellate cause number. Once the Court has granted severance and the Clerk of this Court has issued a separate appellate cause number, then the Plaintiffs and the Settling Defendants may refile this joint motion to set aside the trial court's judgment without regard to the merits in that severed appellate cause number. See TEX. R. APP. P. 42.1(a)(2)(B).
It is so ORDERED. Judge's signature: /s/ Laura C. Higley
[v] Acting individually [ ] Acting for the Court Date: July 19, 2016